Absolute and Strict Liability

So far, the cases we've been discussing have focused on the defendant's fault. Did the defendant act in a blameworthy manner -- for example, by not using reasonable care or by not meeting the standards of his or her profession? In the arena of ordinary negligence, unless the plaintiff shows a breach of the defendant's duty, there's no liability, even if something goes wrong. Think Hammontree v. Jenner. But are there occasions where a party can be liable without fault? Yes. At the far end of the spectrum is absolute liability. Insurance companies contract for precisely that kind of liability: if the specified harm happens, they agree to pay. And they may do so even when the claimant is at fault: one of the major reasons people buy homeowner's insurance is so that, even if they forget to turn off the stove when they leave for work, the insurance company will pay for the ensuing fire damage. There are not a lot of true absolute liabilities in tort law. Workers' compensation systems approach absolute liability: if a worker is injured on the job, it does not matter whether the employer was negligent, whether a co-worker was negligent, or whether the employee himself was negligent. As long as the injury occurred "on the job" -- a plastic concept as you'll remember from the vicarious liability materials -- the employer is bound to pay a statutorily determined amount. The tradeoff at the heart of workers' compensation systems is that in return for this quasi-absolute employer liability (firms are not, for example, required to compensate workers for deliberately self-inflicted injuries), employees are stripped of their right to bring a conventional tort suit and employers' liability is limited by statute to medical expenses and lost wages; there's no compensation for pain and suffering. In between negligence and absolute liability lies strict liability. Strict liability holds a defendant liable without respect to fault, but leaves open the possibility of a defense -- for example, comparative negligence. In the Restatement (Third), the discussion of strict liability appears in sections 20 to 25. Strict liability is generally limited to what the Restatement calls "abnormally dangerous activities" -- those activities likely to produce injuries even when they're done with appropriate care. Comment e to section 20 (which appears in your paperback version on page 276) observes that: Courts frequently state that blasting is a paradigm of an abnormally dangerous activity. It is useful to identify the elements of this paradigm case. First, the defendant chooses to engage in blasting for reasons of its own benefit and is almost certainly aware of the dangers associated with its blasting. Secondly, blasting is likely to cause harm, by way of debris or concussion, even though the defendant adopts all reasonable precautions in the course of conducting the blasting activity. Because blasting remains dangerous even when all reasonable care is exercised, blasting is an activity whose dangerousness is 'inevitable' or 'inherent.' The next special feature that distinguishes blasting is that blasting is an activity that causes harm essentially on its own, without meaningful contribution from the conduct of the victim or of any other actors. Typically, the victim is a passive, uninvolved third party, who is connected to the blasting only in the sense that the victim owns property in the neighborhood and suffers harm on account of the blasting. The materials in this section look at whether a defendant's conduct should subject the defendant to liability without regard to fault. In a subsequent section, we look at the question whether a defendant should be held liable without regard to fault because a product sold or distributed by the defendant injured the plaintiff.